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Former Prosecutors Amicus Case 20-2789, Document 300, 11/05/2020, 2968914, Page1 of 29 20-2789 (L) 20-3177 (XAP) In the United States Court of Appeals For the Second Circuit O UNIFORMED FIRE OFFICERS ASSOCIATION, UNIFORMED FIREFIGHTERS ASSOCIATION OF GREATER NEW YORK, POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., CORRECTION OFFICERS’ BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., SERGEANTS BENEVOLENT ASSOCIATION, LIEUTENANTS BENEVOLENT ASSOCIATION, CAPTAINS ENDOWMENT ASSOCIATION and DETECTIVES’ ENDOWMENT ASSOCIATION, Plaintiffs-Appellants-Cross-Appellees, – v. – BILL DE BLASIO, in his official capacity as Mayor of the City of New York, Defendant-Appellee, (See inside cover for continuation of caption) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, No. 20-CV-05441-KPF BRIEF OF AMICI CURIAE FORMER PROSECUTORS IN SUPPORT OF INTERVENOR-DEFENDANT- APPELLEE-CROSS-APPELLANT AND URGING AFFIRMANCE DORSEY & WHITNEY LLP Attorneys for Amici Curiae Former Prosecutors 51 West 52nd Street New York, New York 10019 (212) 415-9200 APPELLATE INNOVATIONS (914) 948-2240 15199 Case 20-2789, Document 300, 11/05/2020, 2968914, Page2 of 29 _________________________ – and – CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT, DANIEL A. NIGRO, in his official capacity as the Commissioner of the Fire Department of the City of New York, NEW YORK CITY DEPARTMENT OF CORRECTIONS, CYNTHIA BRANN, in her official capacity as the Commissioner of the New York City Department of Corrections, DERMOT F. SHEA, in his official capacity as the Commissioner of the New York City Police Department, NEW YORK CITY POLICE DEPARTMENT, FREDERICK DAVIE, in his official capacity as the Chair of the Civilian Complaint Review Board and CIVILIAN COMPLAINT REVIEW BOARD, Defendants-Appellees, – and – COMMUNITIES UNITED FOR POLICE REFORM, Intervenor-Defendant-Appellee-Cross-Appellant. _________________________ Case 20-2789, Document 300, 11/05/2020, 2968914, Page3 of 29 TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................1 ARGUMENT..........................................................................................................5 I. The District Court Properly Assessed the Benefits of Transparency That Will Result From the Repeal of § 50-a..................................................5 II. The Repeal of § 50-a Will Facilitate the Work of Prosecutors Specifically by Improving Transparency.......................................................6 A. Effect of § 50-a in Criminal Cases Relating to Potential Police Misconduct .......................................................................................10 1. Eric Garner Case.....................................................................11 2. Ramarley Graham Case ..........................................................14 3. Sean Bell Case........................................................................16 4. Patrick Dorismond Case..........................................................18 B. Effect of § 50-a in Other Serious Criminal Cases..............................21 CONCLUSION ....................................................................................................22 i Case 20-2789, Document 300, 11/05/2020, 2968914, Page4 of 29 TABLE OF AUTHORITIES Page(s) Cases Carr v. de Blasio, No. 101332/2019, 2020 WL 5852062 (Sup. Ct. N.Y. Cnty. Sept. 24, 2020)...........................................................................................13, 14 Green v. Giuliani, 187 Misc. 2d 138 (Sup. Ct. N.Y. Cnty. 2000) ............................................18, 19 Luongo v. Records Access Officer, 150 A.D.3d 13 (1st Dep’t 2017).......................................................................12 Luongo v. Records Access Officer, 49 Misc. 3d 708 (Sup. Ct. N.Y. Cnty. 2015) ....................................................11 Malcolm v. NYPD, 2017 N.Y. Misc. LEXIS 5349 (Sup. Ct. N.Y. Cnty. Dec. 22, 2017).....14, 15, 16 Malcolm v. NYPD, No. 100466/17, 2018 N.Y.L.J. LEXIS 2874 (Sup. Ct. N.Y. Cnty. July 31, 2018) ......................................................................................14, 15, 16 New York Civil Liberties Union v. NYPD, et al., 74 A.D.3d 632 (1st Dep’t 2010).......................................................................17 Statutes & Rules N.Y. Civil Rights Law § 50-a ........................................................................passim Fed. R. App. Proc. 29..............................................................................................1 Other Authorities David Kravets, NYPD caught red-handed sanitizing police brutality Wikipedia entries, ARS Technica (Mar. 13, 2015 12:09PM), https://arstechnica.com/tech-policy/2015/03/nypd-caught-red- handed-sanitizing-police-brutality-wikipedia-entries/ ......................................13 ii Case 20-2789, Document 300, 11/05/2020, 2968914, Page5 of 29 Dean Meminger, Advocacy rally to repeal 50a law (Oct. 17, 2019), https://www.ny1.com/nyc/all-boroughs/news/2019/10/17/advocates- rally-to-repeal-50a-law ....................................................................................21 Elizabeth Kolbert, Personal and Political,THE NEW YORKER (May 1, 2000), https://www.newyorker.com/magazine/2000/05/08/personal-and-political ......19 Carimah Townes & Jack Jenkins, EXCLUSIVE DOCUMENTS: The disturbing secret history of the NYPD officer who killed Eric Garner, ThinkProgress, https://archive.thinkprogress.org/daniel- pantaleo-records-75833e6168f3/......................................................................12 President Obama’s Task Force on 21st Century Policing, https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf .........................21 Testimony Submitted By Gwen Carr, Mother of Eric Garner, submitted to New York State Senate Committee on Codes in support of S.3695-Bailey/A 2513 – O’Donnell, Repealing CRL Section 50-a, https://www.changethenypd.org/sites/default/files/docs/gwen_carr_repeal_5 0-a_testimony_10-24-19.pdf............................................................................12 Testimony Submitted By Constance Malcolm, Mother of Ramarley Graham, submitted to New York State Senate Committee on Code in support of S.3695-Bailey/A 2513 – O’Donnell, Repealing CRL Section 50-a, https://www.changethenypd.org/sites/default/files/docs/constance_malcolm_ repeal_50-a_testimony_10-24-19.pdf...............................................................15 Testimony Submitted By Valerie Bell, Mother of Sean Bell, submitted to New York State Senate Committee on Code in support of S.3695-Bailey/A 2513 – O’Donnell, Repealing CRL Section 50-a, https://www.changethenypd.org/sites/default/files/docs/valerie_bel l_repeal_50-a_testimony_10-24-19.pdf......................................................16, 17 Ali Watkins & Ali Winston, After Critical Report, Police Commissioner Pushes for More Sunlight on Disciplinary Files, N.Y. Times (Feb. 1, 2019), https://www.nytimes.com/2019/02/01/nyregion/nypd-discipline- transparency.html...............................................................................................9 Jonathan Allen, NYPD forces out four officers in Sean Bell shooting, Reuters (Mar. 24, 2012 8:25PM), https://www.reuters.com/article/us- newyork-police/nypd-forces-out-four-officers-in-sean-bell-shooting- idUSBRE82O00G20120325 ............................................................................18 iii Case 20-2789, Document 300, 11/05/2020, 2968914, Page6 of 29 Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054 (2017)..........................................................8 Rachel Silberstein, Advocates push for repeal of 50-a ahead of session, Times Union, Dec. 24, 2018, https://www.timesunion.com/news/article/NYS-50-a-13488713.php;..............21 Rick Trinker & Tom R. Tyler, Bounded Authority: Expanding “Appropriate” Police Behavior Beyond Procedural Justice, 42 Law & Human Behavior 280, 289 (2018) ..........................................................8 Statement of Police Commissioner Howard Safir (Mar. 31, 2000)........................21 Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283 (2003) .................................................................8 William K. Rashbaum, Undercover Police in Manhattan Kill an Unarmed Man in a Scuffle,N.Y.TIMES (March 17, 2000) https://www.nytimes.com/2000/03/17/nyregion/undercover-police- in-manhattan-kill-an-unarmed-man-in-a-scuffle.html ......................................19 William L. Rashbaum, Detective in Fatal Shooting Is Said to Be Misjudged, Too,N.Y.TIMES (March 23, 2000) https://www.nytimes.com/2000/03/23/nyregion/detective-in-fatal- shooting-is-said-to-be-misjudged-too.html.......................................................20 iv Case 20-2789, Document 300, 11/05/2020, 2968914, Page7 of 29 INTRODUCTION Amici are former prosecutors who worked in the federal or state criminal justice systems (or both). This brief is submitted on their behalf, in support of Intervenor-Defendant-Appellee-Cross-Appellant Communities United for Police Reform and in opposition to the appeal of Plaintiffs-Appellants-Cross-Appellees (“Appellants”).1 Amicus Alvin Bragg was the Chief Deputy Attorney General of New York, where he oversaw a wide array of criminal matters, including investigations of deaths of unarmed persons caused by police officers. He also served as an Assistant United States Attorney in the Southern
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